Judicial Activism to Adventurism: Critical Analysis of Indian Judiciary
The article 'Judicial Activism to Adventurism: Critical Analysis of Indian Judiciary' by Rohit Sharma is a comprehensive study of the historical background of the origin of Judicial Activism, and various case laws that highlight the significant role of the Judiciary.
The article 'Judicial Activism to Adventurism: Critical Analysis of Indian Judiciary' by Rohit Sharma is a comprehensive study of the historical background of the origin of Judicial Activism, and various case laws that highlight the significant role of the Judiciary. The article briefly discusses certain loopholes in the legislative enactments and wishes to have certain modifications as to the present need.
Judicial activism means the active role played by the judiciary in promoting justice. Judicial Activism to define broadly, is the assumption of an active role on the part of the judiciary. Judicial Activism means filling the legislative gaps and safeguarding people from the tyranny of the executive.
The term "judicial activism" was coined for the first time by Arthur Schlesinger Jr. in his article "the Supreme Court: 1947" published in Fortune magazine in 1947.
The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, but he also declined to say whether activism is good or bad." Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular, John Marshall.
Evolution in India
Upendra Baxi said that before 1967 the Indian courts were a centre of Political power. In his book, he writes that "the home truth is that the Indian Supreme Court is a centre of political power, even though a vulnerable one. It is a centre of political power simply because it can influence the agenda of political action, control over which power politics is in reality all about.
The public debate over judicial review primarily revolves around denunciations of judicial 'activism'. The term does not have any clear content but some basic notion of activism underlies the normative scholarly debate over judicial review as well.
All those who support Judicial Activism say that it is nothing but a legitimate form of Judicial Review. The emergence of judicial review gave birth to a new movement which is known as judicial activism.
The Constitution of India explicitly establishes the doctrine of judicial review in several Articles, such as Articles 13, 32, 131-136, 143, 226, and 246. The doctrine of judicial review is thus firmly rooted in India and has the explicit sanction of the Constitution.
The main object of Article 13 is to secure Fundamental Rights. Article 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts. Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution. Article 246 (3) ensures the state legislature's exclusive powers on matters pertaining to the State list. Article 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state between the states and the union but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.
Judicial Activism in the Indian Context
In A.K.Roy v. Union of India, (1982) SCR (2) 272, the Supreme Court issued orders on the matter of how the preventive detenues are to be dealt with, while they are kept in confinement. In Vineet Narain v. Union of India, (1998) 1 SCC 226, the Supreme Court had set out various rules for the arrangement, exchange, residency, status, and so on., of the head of the exploring offices like the Central Bureau of Investigation (CBI), the Central Vigilance Commission, the Enforcement Directorate, and so on.
The most recent delineation of the Judiciary violating itself and enacting in the appearance of directions in the guidelines issued to the Election Commission on account of Union of India v. Association for Democratic Reforms, (1982) SCR (2) 272, obliging possibility to give on the testimonies data about themselves, for example, regardless of whether they had any past feelings, criminal bodies of evidence pending against them, their pay, their instructive capabilities, and so forth, in an, endorsed, organize, coming up short which their designation ought to be rejected.
In a Seminar on 'Over-Activism of Judiciary is an utter detestation to Constitutional Structure', Congress representative Abhishekh Manu Singhvi opined that India happens to be the main nation where Judicial Activism is at the most elevated amount. Judicial Activism has flourished in India and has procured colossal authenticity with the Indian open. He said that it was verifiable malice that the Judiciary has infringed upon the region of alternate organs of the Government.
The judgment of the Supreme Court in the case of Kailas and others v. State of Maharashtra, (2011) 1 SCC 793, is a classic example of judicial mis-adventurism and much of the observation in the judgment is in the realm of 'obiter dicta' and it was wholly needless to decide the case before the court, even without those observations, the court could have expressed the plight of Scheduled tribe in their own land. Not long ago the Supreme Court reminded itself in the case of Divisional Manager, Aravali Golf Club v. Chander Hassnder Hass and Anr, [Appeal (civil) 5732 of 2007], the need for judicial restraint by reminding itself of the oft-quoted words of Chief Justice Neely of the West Virginia Supreme Court. In the case of Aravali, the court observed that
"Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors".
Judicial Restraint is the need of the hour
Indira Gandhi v. Raj Narain, 1975 AIR 2299, M.H. Beg J. further added that:-
"The separation of power is a part of the basic structure of the constitution. So, the schemes of the constitution cannot be changed even after restoring Article 368 of the Indian Constitution."
P Ramachandran Rao v. State of Karnataka, (2002) 4 SCC 578, Supreme court does not consider itself to be an imperium in Imperio or would function as a despotic branch of the state.
In the words of Justice J S Verma (former Chief Justice of India):
"…the judiciary should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should neither be judicial 'adhocism' nor judicial tyranny."
Justice Markandey Katju in Minor Priyadarshini's case [Santosh Kumar Singh v. State through CBI, ( 2010) 9 SCC 747] has explained thus:
"Under the Constitution, the legislature, the executive, and the judiciary have their own broad spheres of operation. It is, therefore, important that these three organs of the state do not encroach upon the domain of another and confine themselves to their own, otherwise, the delicate balance in the Constitution will be upset… The judiciary must therefore exercise self-restraint and eschew the temptation to act as a super-legislature. By exercising restraint, it will only enhance its own respect and prestige… Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state. It accomplishes this in two ways. First, it not only recognizes the equality of the other two branches with the judiciary, but it also fosters that equality by minimizing inter-branch interference by the judiciary… Second, it tends to protect the independence of the judiciary… The touchstone of an independent judiciary has been its removal from the political and administrative process… Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers."
The Supreme Court noted in Indian Drugs & Pharmaceuticals Ltd v. Workmen, (2007) 1 SCC 408, that:
"the Supreme Court cannot arrogate to itself the powers of the executive or legislature… There is a broad separation of powers under the Constitution of India, and the judiciary, too, must know its limits"
In recent times we can notice in the context of marital rape, the Sabarimala judgment, or even in welcoming judgment regarding allowing women, irrespective of their marital status, safe and legal abortion up to 24 weeks. But an interesting point is that in India, there is no specific law on abortion or any specific right of abortion, not only Section 312 of IPC punishes for causing miscarriage and MTPA 1971 is a special law. The point I want to address is sometimes the judiciary does just not supplement the law but supplant it.
In the end, I would quote the former Prime Minister (Dr. Manmohan Singh):
"The line between Judicial activism and judiciary overreach is a thin one ... A takeover of the elements of another organ may turn into an instance of over-reach".